Court reverses conviction, affirms revocation

JACKSON – A flawed jury instruction sends a Lafayette County conviction back for a new trial, the Mississippi Supreme Court ruled Thursday.
Edward Daniels was tried in absentia after his February 2010 indictment on burglary of a dwelling. Before trial, the charge was amended to cite him as a habitual offender.
A jury found him guilty and sentencing was delayed until he could be located.
Ultimately, Circuit Judge Andrew Howorth sentenced him to life without possibility of parole.
Daniels’ request for a new trial was denied, and he appealed to the supreme court.
Writing for the 9-0 court, Justice Leslie King said Daniels’ conviction and Howorth’s decision not to grant a new trial are reversed and sent back to him for further proceedings “because the jury instruction on the elements of burglary was fatally flawed.”
Although the state did not have to prove that grand larceny was an element of burglary, King wrote that it was necessary to offer proof of Daniels’ intention to commit “some specific crime” as the second part of burglary.
The jury instruction in question did not do that, the appeals court said.
In a second case, the 5-4 court dismissed a Tishomingo County circuit court appeal by Jay McCalpin.
In 2000, McCalpin pleaded guilty to one count of fondling and two counts of sexual battery on a child under the age of 14. Circuit Judge James L. Roberts Jr. sentenced him to 15 years, with 10 suspended and five years supervision after his release.
Across the years, his supervision was revoked twice, with his suspended sentence reinstated.
McCalpin asked for a circuit court hearing but was denied. He appealed, the Mississippi Court of Appealed affirmed the decision, then he was granted a hearing by four supreme court justices.
Thursday, five justices said McCalpin did not comply with its rules and was late seeking a rehearing.
They said they disagreed with the dissent of their four fellow justices – Leslie King, Jess Dickinson, Jim Kitchens and David Chandler – and declined to suspend the rules to consider the appeal.
They also said probation can be revoked when “it is more likely than not” that it’s been violated, which they said McCalpin did by harassing a teenage girl.
The dissenters agreed McCalpin was “unjustly deprived of his liberty” when his supervision was revoked because the state could not show that he more likely than not violated its terms when he was accused of stalking, which requires repeated harassment.
patsy.brumfield@journalinc.com